Trademark Colors

Intellectual Property
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How to Trademark Colors in South Africa

Is it possible to trademark colors? Yes, the South African Trade Marks Act specifically provides for the registration of non-conventional trademarks, such as colors. A mark is defined as any sign capable of being represented graphically including, patterns, shapes, configurations, colors or containers for goods. Just like a Brand name or logo, trademark colors can provide an identity and unifying feature for an organisation. Color schemes can sometimes be even more useful when identifying a brand such as a sports team, because they are highly distinctive and instantly recognisable, even from a distance. The term “trademark” should not be confused with ownership of color. Trademarking a color simply gives an organisation exclusive rights to use a particular color in its own industry or in most cases for their very specific products. A non-conventional trademark is a type of trademark which does not belong to any pre-existing trademark category. Non-conventional trademarks are often difficult to register, but fulfils the essential trademark function of uniquely identifying the brand. The Agreement on Trade-Related Aspects of Intellectual Property Rights sets down a standardised inclusive legal definition.

Non-conventional – Trademark Colors

Visible signs (colors, shapes, moving images, holograms, positions)
Non-visible signs (sounds, scents, tastes, textures).

Trademark Shapes
In order to trademark shapes your mark needs to consist of a three-dimensional shape. It is typically considered a non-traditional trade mark.  Other non-traditional trade marks include position marks and gesture marks. Examples of well-known shape marks are the Weber Kettle braai, the old Coca-Cola glass bottle, KitKat chocolate bars and Toblerone chocolates…

When you don’t Trademark colors

Simply by using a color scheme for a long enough time can give you rights to those colors. However, the burden of demonstrating trade mark rights in the color scheme during a dispute can potentially be reduced or even eliminated by obtaining a trade mark registration.